DPP v Keogh

• Jurisdiction: Ireland
• Judge: Mr Justice Kelly
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 87
• Court: High Court
• Docket Number: [1996 No. 2181 SS]
• Date: 01 January 1998

DPP v. KEOGH

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

MARTINA KEOGH

ACCUSED

[1997] IEHC 87

218 SS/1996

THE HIGH COURT

Synopsis:

Evidence

Consultative case stated; s.8 Criminal Law (Sexual Offences) Act, 1993; failure to comply with direction; whether "reasonable cause" for suspicion; whether entitlement to adduce evidence of previous character and activities of accused prior to date of alleged offence; whether evidence of nature and type of area of alleged offence can be adduced; whether sufficient admissible evidence Held: Evidence concerning previous behaviour of accused inadmissible; constitutionally fair procedures; evidence of nature and type of area can be adduced (High Court: Kelly J. 03/06/1997)- [1998] 4 IR 416 - [1998] 1 ILRM 72

D.P.P. v. Keogh

Citations:

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8(1)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8(2)

KING V AG & ANOR 1981 IR 233

R V HARRIS 1951 1 KB 107

R V GOODWIN 1944 KB 518

PREVENTION OF CRIMES ACT 1871 S15

1 JUDGMENT of Mr Justice Kelly delivered the 3rd day of June, 1997 .

2 On the 6th November, 1995 the Accused appeared before District Judge Desmond Hogan at a sitting of the Dublin Metropolitan District Court.She was charged with the following offence:-

"That you, the said Accused, on the 22nd September, 1994 at Wilton Place, in the said District, being a person of whom a member of An Garda Siochana, namely Sergeant George Kyne, had reasonable cause to suspect of loitering in a street or public place, namely Wilton Place, Dublin 2, in order to solicit or importune another person or persons for the purpose of prostitution, did, without reasonable cause, fail to comply with the direction of the said member to leave immediately the said street or public place contrary to Section 8 of the Criminal Law (Sexual Offences) Act, 1993".

3 At the hearing the following facts were proved or admitted:-

4 (i) That Sergeant Kyne, a member of An Garda Siochana, attached to Harcourt Terrace Garda Station, Dublin 2, was on duty on the 21st September, 1994. At 1.20 a.m. he was at Wilton Place, Dublin 2 accompanied by Garda Sharon Burke. He saw four women, including the Accused, standing in Wilton Place, opposite the offices of the Industrial Development Authority. He stated to the Court that he had reasonable cause to suspect that these women were loitering in Wilton Place in order to solicit or importune another person or persons for the purposes of prostitution.

5 (ii) Sergeant Kyne cautioned the four women, including the Accused, under Section 8(1) of the Criminal Law (Sexual Offences) Act, 1993and directed them to leave the area immediately and he informed them of the consequences of their failure to obey that direction. They indicated that they had understood the direction.

6 (iii) At 2.44 a.m. Sergeant Kyne returned to Wilton Place where he found that two of the women, including the Accused, were still standing in the area where they had been earlier when directed to leave. Sergeant Kyne then arrested Martina Keogh, the Accused, of 58 Lower Dominick Street, under Section 8(2) of the Criminal Law (Sexual Offences) Act, 1993for failing to comply with his direction.

7 (iv) Sergeant Kyne informed the Court that he had formed his suspicion as a result of the fact that the area was well known to him as a "red light" area and that he had personally known the Accused for a period of two and a half years. He stated to the Court that he had seen the Accused in that area on previous occasions and had seen her approaching cars.

8 The solicitor for the Accused objected to this latter evidence of Sergeant Kyne. She submitted that evidence of the Accused's alleged previous behaviour was not admissible. In support of this contention she relied on the judgments in the case of King v. The Attorney General and Another [1981] I.R. 233.

9 In order to understand the basis for her submission, it is necessary that I set out Section 8 of the Criminal Law (Sexual Offences) Act, 1993under which the Accused was charged. It reads as follows:-

10 2 "(1) A member of the Garda Siochana who has reasonable cause to suspect that a person in loitering in a street or public place in order to solicit or importune another person or other persons for the purposes of prostitution may direct that person to leave immediately that street or public place.

11 (2) A person who without reasonable cause fails to comply with a direction under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding -

12 (a) £250 in the case of a first conviction,

13 (b) £500 in the case of a second conviction, or

14 (c) £500 or to imprisonment for a term not exceeding four weeks or to both, in the case of a third or any subsequent conviction.

15 (3) In this section "loitering" includes loitering in a motor vehicle".

16 The Accused's solicitor's submission concerning the inadmissibility of the evidence of Sergeant Kyne related to that part of the evidence which was adduced so as to demonstrate that he had reasonable cause to suspect that the Accused was loitering in order to solicit or importune for the purposes of prostitution. The solicitor submitted that in giving such evidence, the Sergeant was confined to matters which occurred on the day of the incident and could not give evidence of prior knowledge of the Accused. Furthermore, it was submitted, that while a Garda may know an area to be frequented by prostitutes, he could not have a reasonable suspicion that all women walking in that area were loitering for the purposes of prostitution. It was, therefore, submitted that facts relating to the reasonableness of the Garda's suspicion must relate to circumstances on the date on which he directed her to leave the area.

17 The Sergeant, who conducted the prosecution himself, submitted in response that he felt that he was entitled to rely on his knowledge of the area and the prior suspicious behaviour of the Accused. He agreed that while he had not given the dates upon which he had obtained his prior knowledge, he had relied on dates prior to the date of the alleged offence as set out in the summons.

18 The District Judge then suggested that three possibilities arose if the evidence was inadmissible. They were:-

19 (a) he could discount the evidence if he held it to be inadmissible and continue to hear the case,

20 (b) he could discount the evidence if he held it to be inadmissible and disbar himself from further hearing the case, or

21 (c) he could dismiss the case as a result of the prejudicial evidence having been offered.

22 He then considered the evidence and the issues of law, the right of the Accused to a fair trial and the submissions which were made by the Accused's solicitor. Having done so, he decided to seek the opinion of this Court for the determination of the following questions. The questions are:-

23 2 (1)"Whether in a prosecution for an offence contrary to Section 8(2) of the Criminal Law (Sexual Offences) Act, 1993, the prosecution is entitled to adduce evidence of the previous character and activities of an accused person, which took...